Respondents Victoria and John DeSanti (the DeSantis) brought a dram shop action against appellants David Johnson and James Kramer, d/b/a The Barn (The Barn) after Victoria DeSanti was injured by an intoxicated driver who purchased alcoholic beverages from The Barn. The jury found The Barn liable. The Barn contends that the district court erred by denying its motion for judgment notwithstanding the verdict (JNOV), because the evidence was insufficient to support a finding that it sold alcohol to an obviously intoxicated person. The Barn also contends that the district court's award of pecuniary loss damages to John DeSanti was erroneous, because such damages may be awarded only for wrongful death. We affirm.

FACTS

At approximately 7:00 p.m. on August 1, 1999, Kelly Paul Youngs was driving a vehicle that struck and injured Victoria DeSanti as she rode a bicycle on County Road 18, northeast of Park Rapids. Youngs had been drinking alcohol at The Barn, a bar located approximately three-quarters of a mile from the location of the accident. After the accident, Youngs was arrested, and his blood alcohol content (BAC) measured.32.

On the day of the accident, The Barn held a "customer appreciation day." Between 200 and 300 people attended. The Barn's liquor license does not permit the sale of liquor or strong beer. Instead, The Barn sells 3.2 beer and permits patrons to bring their own liquor to the establishment. Patrons may purchase "set-ups," to mix with their own liquor.

Youngs testified that he arrived at the The Barn at approximately 12:30 p.m. with friends Jason Dunham and Leslie Scouton, Jr. Youngs brought a 750-milliliter bottle of Black Velvet whiskey to The Barn. Youngs testified that he also brought three to four Busch Light beers from his home, which Dunham and Scouton drank. The Barn's manager and sole bartender, Melissa Niblick, testified that shortly after Youngs arrived, he purchased two beers and a set-up. She stated that, in terms of different brands of beer, The Barn sold "just about everything."

Niblick testified on direct examination that after this initial purchase, Youngs "came back in the bar two or three times to get more soda, and I think he purchased a couple beers." She testified that at the time of the initial purchase and the subsequent purchases, Youngs did not appear to be intoxicated. On cross-examination, Niblick stated that she sold him only two beers in the initial purchase and that he only bought set-ups after that.

At trial, Youngs testified that he had eight to ten drinks from the bottle of Black Velvet, and did not recall drinking beer that day. Although his memory was impaired by his intoxication, Youngs stated that he last remembered that the whiskey bottle was "maybe half to three quarters gone." Niblick testified that at 5:30 p.m. or 6:00 p.m., she saw Youngs with the bottle of whiskey, which was half full. Youngs's last recollection at The Barn is playing horseshoes at The Barn's horseshoe pit with Dunham, Kramer, and Ken Getchell. Kramer testified that he stopped playing horseshoes with Youngs around 2:30 p.m. or 3:00 p.m. When asked about his level of intoxication at that point, Youngs testified that he "wasn't doing very good with the horseshoes," and that he was "[l]anding short, being way off." Youngs also testified that although he probably had begun to stagger, he did not recall staggering or slurring his words.

Youngs drove away from The Barn at approximately 7:00 p.m., at which time the DeSantis were riding their bicycles on County Road 18. Youngs's vehicle struck Victoria DeSanti. Youngs then proceeded down County Road 18, but later returned to the scene of the accident.

Deputy J. T. Harris, who responded to the accident, testified that Youngs was leaning and falling, and that Harris had to "physically hold [Youngs] up." John DeSanti testified that, at the scene of the accident, he overheard Youngs state that he "had dr[u]nk eight -- or ten to 18 beers." Harris testified that while transporting Youngs from the scene of the accident, he stated that he had just come from The Barn. Harris interviewed Youngs at the law enforcement center, and Youngs stated that he had been drinking beer and estimated that he had "maybe ten."

When Youngs retrieved his car after the accident, he discovered four to six empty Bud Light or Busch Light beer cans in his trunk. When drinking, it was Young's habit to put empty cans in the trunk of his car. The brands of beer found in his trunk were the type Youngs prefers to drink. Dunham and Scouton both testified that they did not put the cans in Youngs's trunk. But Youngs testified it was possible he put the empty cans in the trunk before the day of the accident. In addition, although he had $75 to $100 in his wallet when he arrived at The Barn, Youngs testified that he discovered that he had lost his wallet and had only "a couple dollars and some change" when he was booked into jail.

Dr. Richard Kingston, a clinical toxicologist, testified as an expert for The Barn. He stated that drinking three-fourths of the bottle of Black Velvet over the time Youngs had been drinking would be sufficient to produce a BAC of.32 for a person Youngs's size. On cross-examination, Kingston agreed that 13 to 14 beers would contain approximately the same amount of alcohol by weight as one-half a bottle of whiskey and admitted that drinking a half bottle of whiskey and 13 to 14 beers would also produce a BAC of.32. Kingston also testified that, in any event, once Youngs's BAC reached.20, signs of intoxication would have been evident.

The DeSantis moved for a directed verdict against Youngs, requesting that the district court find that Youngs negligently operated his motor vehicle and that his negligence was a direct cause of the accident. The district court granted this motion. The jury found both The Barn and Youngs negligent and apportioned 50% fault to each. The Barn moved for JNOV, or in the alternative, for a new trial. The district court denied this motion. On June 5, 2002, the district court entered judgment against Kramer and Johnson for $628,274.94, including damages found by the jury, costs, disbursements, and prejudgment interest. Included in this amount was a $200,000 award to John DeSanti for pecuniary loss. This appeal followed.

DECISION

The denial of a motion for JNOV is reviewed de novo. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). JNOV is proper when the verdict is manifestly against the entire evidence. Id. A reviewing court must affirm the district court's denial of the motion for JNOV, unless the evidence is practically conclusive against the verdict. Id. We consider the evidence in the light most favorable to the prevailing party and we will not set aside the verdict "if it can be sustained on any reasonable theory of the evidence." Id. The decision to grant or deny a new trial lies "within the sound discretion of the ...

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